n

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES A. CONNELL, )

)

Petitioner, )

)

vs. ) CASE NO. 81-255

)

CITY OF CLEARWATER, )

)

Respondent. )

)

ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted on March 25, 1981, in the Commission Chambers, Third Floor, City Hall,

112 South Osceola Avenue, Clearwater, Florida.

APPEARANCES

For Petitioner: George W. Greer, Esquire

302 South Garden Avenue Clearwater, Florida 33516

For Respondent: Thomas A. Bustin, Esquire

Post Office Box 4748 Clearwater, Florida 33518

ISSUE

This matter concerns the request by the Petitioner James A. Connell to be granted variances within the meaning of Section 131.016(b), City of Clearwater Building and Zoning Regulations. In particular the Petitioner has asked that he be given a variance from the side yard setback requirements for narrow parcels established by Section 131.200(b)(3)a.2., City of Clearwater Building and Zoning Regulations, and a variance to the requirements of Section 131.200(b)(3)e., dealing with clear space. The zoning classification in question is RM-8, as set forth in Section 131.048, City of Clearwater Building and Zoning Regulations.

FINDINGS OF FACT

1. On November 17, 1980, the Petitioner, James Connell, filed an application requesting a variance from the side setback requirements of Section 131.200(b)(3)a.2., City of Clearwater Building and Zoning Regulations, asking for a reduction from 30 feet to 10 feet and further requesting that the clear space requirement of having only one side yard setback to be used for parking, with the other side yard setback for clear space from street to water, with the further possibility that that space be used for driveways of parking below street grade, as stated in Section 131.200(h)(3)c., be modified to grant the Petitioner a variance. The extent of this latter variance would be for clear space offered in the center portion of the project which gives 24 feet in width

   essentially unobstructed clear space, with an additional 20 feet space street to water on each side of the 24 feet unobstructed space, which north/south 20 foot expansions are constituted of driveways for the eight (8) proposed dwelling units to be constructed by the Petitioner. The real property under consideration is owned by the Petitioner and zoned RM-8 within the meaning of Section 131.048, City of Clearwater Building and Zoning Regulations. The address is 1012-1016 North Osceola Avenue, Clearwater, Florida.

   
   

2. This case was presented before the State of Florida, Division of Administrative Hearings, on March 25, 1981, following a public hearing of January 15, 1981, in which the Board of Adjustment and Appeal on Zoning, City of Clearwater, Florida, had made an adverse ruling to the position of the Petitioner. The tape of the proceeding on January 15, 1981, may be found as Petitioner's Exhibit No. 3, admitted into evidence. The site plan of the project in question has been reviewed by the Resource Development Committee of the City of Clearwater with a recommendation for approval of the project, conditioned upon the attainment of variance exceptions.

   
   

3. A copy of the application for variance may be found in the City of Clearwater's Composite Exhibit No. 4, admitted into evidence. Through that application form, and in the course of the hearing, the Petitioner expressed concern about the survival of two 36 inch in diameter mature oak trees located on the property in question and also mentioned that the drop in elevation of the eastern side of the property front on Osceola Avenue North to the waterward western extreme of the property at Clearwater Harbour becomes dramatic approximately two thirds from the eastern extent of the property line making utilization of the latter third to the west difficult. In combination, this topographical reality and the location of the two oak trees, according to the Petitioner, would make it difficult to construct a project oriented to the center of the property, in an effort to comply with the "clear space" requirements.

   
   

4. The Respondent, City's Exhibit No. 1, admitted into evidence, is a site plan which depicts the Petitioner's proposals and it shows that lot to be approximately 160 feet in width and from 355 to 360 feet in length, the width relating to a roughly north/south orientation and the length a roughly east/west orientation. The drawing depicts the proposed ten foot side setback, the 24 foot clear space with additional 20 feet north/south associated with the driveways. The proposal would leave in tact the aforementioned oak tree or trees located in the approximate center of the 24 foot vista space. (In that connection, although the Petitioner has attempted by his plan to save some of the trees, the plan as drawn for unit four of the eight unit townhouse complex depicts the removal of a 40 inch oak tree.)

   
   

5. The lot drops from a 26 foot to a 17 foot elevation from the street to Clearwater Harbour. The effect of that drop would be to limit the percentage of an automobile that could be seen if located in a driveway toward the waterward side of the site.

   
   

6. The Petitioner's Exhibit No. 1 and the City's Composite Exhibit No. 2 are photographs of the building site.

   
   

7. Through the hearing process no one has objected to the grant of the variances in question and one person who resides In the neighborhood spoke in favor of the project.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in keeping with Chapter 120, Florida Statutes, and the City of Clearwater Building and Zoning Regulations.

   
   

9. The Petitioner in this cause has requested a variance from the requirements of two setback conditions found in Section 131.200, City of Clearwater Building and Zoning Regulations. The first exception pertains to the side setback requirement of Section 131.200(b)(3)a.2., which requires that 20 percent or 30 feet, whichever would be the lesser amount and in any event no less than 10 feet be set aside as a side setback area. In this instance the lot width being approximately 160 feet, therefore, the requirement would be 30 feet as side setback on each side yard. The Petitioner proposes to reduce those two side dimensions to 10 feet.

   
   

10. The second area in which the Petitioner requests a variance relates to Section 131.200(b)(3)e. By this provision, there is created a clear space requirement which only allows one side yard setback for use as parking and establishes the requirement that the other side yard setback be used as clear space from street to water, with such clear space being available for driveways or parking below street grades. The Petitioner's proposal would remove the parking from the side yard to center portion of the lot with the parking width being approximately 20 feet in front of each unit of the development and the basic orientation of the 20 foot dimension running north/south, for a total of approximately 40 feet spacing in which cars could be parked along the axis.

    (See City Exhibit No. 1) To comply with the clear space requirements from street to water, in lieu of a side yard setback, the Petitioner offers a 24 foot wide stretch from street to water as opposed to the required 30 foot space, which would have at the approximate center, two 36 inch in diameter oak trees in that vista. This same zoning provision on clear space does not allow shrubs or berms to exceed 30 inches in height within the clear space area (cone of vision) and from the photographs, the oak trees in the center position exceed that height.

    This space in combination with the two 20 foot wide parking or driveway space areas in which automobiles would be parked constitute the Petitioner's efforts at complying with clear space requirements. The view in the parking area is obstructed to a varying degree, depending on the location of the driveway along the east/west axis of the lot, there being a drop of nine feet from the street side to the water side of the lot. In summary, the Petitioner would move the parking from a side yard to a center yard and would remove the clear space from a side yard to the center yard.

    
    

11. Section 131.016(e), City of Clearwater Building and Zoning Regulations, allows the Board to grant variances to persons such as the Petitioner on those occasions where there are practical difficulties or unnecessary hardships in carrying out the strict letter of provisions of the regulations. This power to determine and vary those provisions exists if determinations and variances are in harmony with the general purposes and intent of the regulations, related to health, safety and general welfare, keeping in mind the need to do justice. These variances shall not be granted unless and until certain of the following are round to exist:

    
    

    1. That special conditions and circum- stances exist which are peculiar to the land, structure or building involved and which are not applicable to other lands,

       buildings or structures in the same district.

    2. That liberal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this chapter.

    3. That the special conditions and circum- stances referred to in subsection a. above, do not result from the actions of the applicant.

    4. That granting the variance requested will not confer on the applicant any special privilege that is denied by this chapter to other lands, structures or dwellings in the same district.

       
       

       No nonconforming use of neighboring lands, structures or building in the same district, and no permitted use of land, structures or building in other districts shall be con- sidered grounds for the issuance of a variance.

       
       

12. After examining the requests made by this Petitioner, they should be rejected. Section 131.200 contemplates side setback areas which are three times the amount for which the Petitioner contends. That same provision contemplates an orientation of building in the center of a lot, with a clear space being made available on the side yards. Even assuming the propriety of allowing for orientation in the building process toward the side yard extremities of the lot and clear space in the center portion of the lot, the visual obstructions offered by the substantial sized oak trees in the center and the automobiles that would be parked in the driveways significantly diminish the effectiveness of the proposed substituted vista. The proof did not show that there are special conditions and circumstances peculiar to the land, structure or buildings involved which are not applicable to other lands, buildings and structures in the same district. Simply stated, the plan demonstrates an effort at making optimum use of this parcel for a commercial venture, in contrast to a less ambitious development that is in harmony with appropriate zoning and building requirements.

    
    

13. There was no indication that the interpretation given herein would deprive the applicant of rights commonly enjoyed by other properties in the sane district.

    
    

14. To allow the requested variances would be to confer a special privilege on the applicant which would lead other persons to make similar requests that could not be allowed without materially modifying the philosophy of the regulations.

    
    

15. The construction of this project would not be injurious to the neighborhood or otherwise detrimental to the public welfare, nevertheless, it should be denied as being inharmonious when considered in view of the general purposes and intent of the regulations. 1/

    
    

16. In view of the Findings of Fact and Conclusions of Law reached herein, it is

HELD that the application by the Petitioner James Connell to he granted variances as stated herein be DENIED.

DONE and ENTERED this 23rd day of April, 1981, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1981.

ENDNOTE

1/ The Petitioner's counsel has proposed findings of fact and conclusions of lab and a recommendation in this case. These proposals, conclusions and recommendation have been reviewed prior to the entry of this order. To the extent that the proposals. conclusions and recommendation are consistent with the order, they have bean utilized. To the extent that they are inconsistent, they are hereby rejected.

COPIES FURNISHED:

George W. Greer, Esquire

302 South Garden Avenue Clearwater, Florida 33516

Thomas A. Bustin, Esquire Post Office Box 4748 Clearwater, Florida 33518

Docket for Case No: 81-000255

Orders for Case No: 81-000255